Opinion issued March 1 9 , 2020

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 18
- 00731
- CR

——————————— KEVIN PEOPLES , Appella nt

V. THE STATE OF T EXAS , Appell e e
On Appeal from the 185th District Court

Harris County, Texas Tria l Court Ca se No. 1551878

MEMORANDUM OPINION
Kev in Peoples appeals his convi ction for aggravated assault with a deadly
weapon. See T EX
. P ENAL C ODE § 22.02(a) (2)

. He alleges that the tr i al court err ed by admit ting testimony r egarding his involveme nt in pro s titution and drug dealing. We affirm.2 Background A r ound noon on April 28, 2016, a commercial truck driver named Alex
Benson parked his 18

- wheeler in the par king l ot of a hotel and rented a room . W h en he rented the room, he was accompanied by Dixie Shir le y, a wo man with pink hair

. She was known to stay with Peoples , who was a long

- te rm resident of the hotel. Around 11:00 p. m. that evening, Shirley suddenly ran fro m Benson ’ s room to get Peoples. W h en she did so, Benson ran from his room to his 18

- wheeler w ithout putting on his shoes or under w ear. Alerted that Benson was trying to run out, Peoples grabbed a loaded .45

- caliber pistol from his hotel room , climbed an exterior staircase , and fired three shots at Benson as he reached his rig . One of those shots

s truck Benson in the back of the head

. Benson continued into his rig , g ot inside, a nd began to driv e away. After shooting at Benson , Peoples returned to his room and put the pistol in a drawer. H e and Shirley then fled from the hotel in People s ’ s car. Mean while,
Benson , disoriented because of t he gunshot wound to his head, dro ve away from the hotel with ou t disengaging his parking brakes. He drove for approxi m ately one mil e before pulling over on the s h oulder of an elevated portion of the Gulf Freeway.
Dazed , he got ou t of the rig ’ s cab and wandered the highway before fallin g over a barrier into the U

- turn lane below. Motorists found him severely injured but3

r e spon sive and called 911. An ambulance arrived and tra nsported Benson to the hospital, where he was p ronounced dead. Investigators soon connected Benson to the abandoned 18

- wh eeler on the freeway above where his body wa s found. T h ey traced the tire tracks back to the
h ot el and obtained the hotel ’ s security video . The video showed Benson and Shir ley toget her renting a room , Peo ples and Shirley together, Shirley and Benson running
out of Benson ’ s hotel room, and the shooting

. They obtained People s ’ s name and phone number from the hotel’s guest re g istration pap erwork and entered the phone number on Facebook. The search produced a page listed under Peop les ’ s alias,

“ Millie Mack ” and photographs of him with several women, including Shirl ey. P eo p les was originally charged with murder, b ut the charge was dismissed,
and t he S tate charged him with aggravated assau lt with a deadly weapon , including two punishment enhancement allegations in the indictment. Peoples pleaded guilty and elected jury sentencing . After a punishment h ear ing , the jury found the State ’ s enhancement allegations true and assessed P eople s ’ s puni shment at 43 years ’ imprisonment. The tr ia l court sentence d him in accordance with the jury ’ s verdict i n August 2018.4 Admission of Evidence O n appeal, P e oples argues that the trial court erre d by admitting testimony from witnes ses who stated they believed tha t Peo ples deal t drugs and was involved in prostitution. A. Standard of Review and Applicable Law Texas Rule of Evidence 602 provides that “ [a] witness m a y testify to a matter only if evidence is introduced sufficient to support a finding that the witness has
perso nal knowledge of the matter. Evidence to prove personal k nowledge may consist of the witness ’ s own testimony. ” T EX
. R. E VID
. 602. Rule 701 provi d es tha t

a witness who is not testifyin g as an expert may testify in the form of an opinion that is “ (a ) rat iona lly bas ed on the witness ’ s perception; and (b) helpful to clearly understanding the witness ’ s testimony or to determining a fact issue. ” T EX
. R. E VID
. 701. We review the trial court’ s decision to admit or exclude evidence for an abuse of discreti on. Henle y v. State , 493 S.W.3d 77, 82

– 83 (Tex. Crim. App. 2016). Under this standard, we may reverse the trial court only if its decision is outside t he zone of reasonable disagreement. Id. at 83. We will uphold the ruling if it is correct under any appli cable theory of law, even if the trial court relied on an incorrect reason for reaching its decision. De La Paz v. State , 279 S.W.3d 336, 344 (Tex. Cr i m. App. 2009).5

B. Test imony Regarding Dru gs Peoples argues that the trial court erred in a dmitting testimo ny from Christopher Gilbert, a long

- term hotel resident

. Specifically, when ask ed how he knew Peoples, Gilbert responded that Peoples sold “ products, like marijuana and
stuff like that ” arou n d the property. On appeal , Peoples argues that Gilbert ’ s
stateme nt should have been excluded because Gilbert did not have personal knowledge of his activitie s . The State responds that Peoples failed to pre s erve this complaint for appellate review . We agre e . To preserve a complaint fo r appellat e review, the complaining party must normally make a timely and specific obje ction and ob tain a ruling from the trial
court. T EX
. R. A PP
. P. 33.1(a) ; Bekendam v. Stat e , 441 S.W.3d 295, 300 (Tex. Crim. App. 2014). Peoples d id not object when Gilbert offered the testimony that Peopl es challenges on appeal. He therefore waived his righ t to complain about the admission
of this test imony on appeal. T EX
. R. A PP
. P

. 33.1

. C. Testimony R egarding Prostitution N ext, P eoples contends tha t the trial court erred in admitting testimony that Peopl es was involved in prostitution

. The State as ked Maritsa Vargas , the hotel
manager, if she knew how Peoples made money or what he w as doing at the hotel. People s ’ s counsel objected that the question ca lled for speculation. The trial court overruled the obj ection , and Var gas testified that she “ assumed [Peoples made6

money by] prostitution

. ” Similarly, the S tate asked Gil b ert if he knew what Peoples
did at the hotel . Peoples ’ s cou nsel objected that the question called for speculation. The trial court overrule d the obj ection, and Gilber t responded, “ I think a pimp or whatever. ” People s co ntends that neither wi t ness had personal knowledge of the
matter a nd their testimony prejud iced the jury against him. The questions aske d by the State elicited responses f rom each witness that

were based on personal knowledge. Specifically, the prosecutor as ked Vargas, “ Did
yo u know how the defendant was mak i ng money or what he w as doing at the hot el ? ” The prosecutor asked Gilbert , “ Anything else that you are aware of tha t he w as doing? ” The witnesses ’ responses demonstrated that they were expressing pers onal

o pinion based on their observations of Peo ples at the hotel property. S ee T EX
. R.
E VID
. 701. The trial court did not abuse its discretion in admitting the test i mony from
Va rgas or Gilbert. Moreover, even assuming the tria l court erred in admitting the evi d ence , Peoples has not demonstrat ed that he was harmed by the admission of the statement s. The erroneous admission of evidence constitutes non - constitutional error governed by Rule of Appellate Procedure 44.2(b)

. Melgar v. State , 236 S.W.3d 302, 308 (Tex. App.

— Houston [1st Dist.] 2007, pet. denied). Non

- constitutional errors requi r e

revers al o nly if it affects th e substantial rights of the accused. T EX
. R. A PP
. P. 44.2( b);
B arshaw v. State , 3 42 S.W.3d 91, 93

– 94 (Tex. Crim. App. 2011 )

. “ A substantial7

right is affected when the error had a substantial and injurious effect or influence in
determin ing the jury ’ s verdic t. ” King v. State , 953 S.W.2d 266, 271 (Tex . Crim. App. 1997). We will not overturn a criminal conviction for non

- constitutional error if, after examining the record, we have fair assurance that the error did not influence
t he jury or had but a slight eff ect. Barsha w , 342 S.W .3d a t 93

– 94. Error in the
admission of ev idence may be rendered harmless when substantially the same evidence is admitted elsewhere without objection. See Leday v. State , 983 S.W.2d 713, 717

– 18 (Tex. C r im. App. 199 8) ; Anderson v. Stat e , 717 S.W.2d 622, 628 (Tex. Crim. App. 1986). Any error in ad mitting Vargas ’ s and Gilbert ’ s statements that each believed People s was in vol v e d in prostitution w as harmless because it was dupli cative of evidence admi t ted elsewher e without objection. The S tate introduced numerous letters written by Peoples referencing his status a s a “ pimp. ” The letters were w ritten from jail to Shirley, his mother, a nd at least two other women. In a letter to Shirley , Peop les wrot e a “ r ap ” about h is involvement in prostit ution : “ Dis [s ic] is Mi l lie
Mack. L ive out da [s ic ] boot. Pimpin g is my game, breaking ho es is what I do. ” In another letter, Peoples wrote : “ Well I’ m a gentleman of legior [sic] (pimp). O n my
team i s females that do what daddy say

. ” ( p arenthetical in original). The content of
the letters demonstrated People ’ s in vo lvem ent in prostitution in greater and more explicit detail than either Vargas ’ s or Gilbert ’ s testi mony. Therefore, any er r or in8

admitting the testimony of those two witne sses was unlikely to have had a substantial
and injuri ous effect or influence upon the ju ry ’ s deliberations. We overrule Peoples ’ s evidentiary issue

. Conclusion We affirm the judgment of the trial court.

Peter Kelly Justice
Pa n el consists of Justices Lloyd, Kelly, and Countiss. Do not publish. T EX
. R. A PP
. P. 47.2(b).